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F I L E D

United States Court of Appeals


Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT

April 27, 2007


Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,


Plaintiff-Appellee,
v.

No. 06-1100
(D. Colorado)

LIO V A RD O G A LV A N V ALG ARA,

(D.C. No. 05-CR-358-N)

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before M U RPH Y, Circuit Judge, M cW ILLIAM S, Senior Judge, and HA RTZ,


Circuit Judge.

I.

Introduction
Appellant Liovardo Galvan Valgara pleaded guilty to a charge of being a

felon in possession of a firearm. Pursuant to the terms of a plea agreement, the


Government agreed to recommend a sentence consistent with the application of a
base offense level of fourteen. The Presentence Investigation Report (PSR)
calculated Valgaras criminal history at V I and his base offense level at tw enty.

This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

The base offense level was affected by Valgaras prior Colorado conviction for
third-degree assault. Valgara filed a response to the PSR, seeking both a
downward departure and a variance from the advisory guidelines range under 18
U.S.C. 3553(a). The district court low ered Valgaras Criminal History
Category to V but rejected his request for a variance. The court sentenced
Valgara to forty-six months imprisonment, the low end of the advisory guidelines
range. Valgara then filed this appeal, arguing his sentence is unreasonable
because it is greater than necessary to satisfy the goals set forth in 18 U.S.C.
3553(a). Exercising jurisdiction pursuant to 28 U.S.C. 1291, we affirm
Valgaras sentence.
II.

Background
On July 3, 2005, a police officer in G reeley, Colorado, observed Valgara

w alking through the parking lot of the Greeley M all toward a broken-down
vehicle. The officer suspected Valgara was associated with the vehicle and
decided to contact him. During the subsequent encounter between the officer and
Valgara, the officer observed the butt end of a handgun protruding from Valgaras
waistband. Valgara was arrested at the scene and the unloaded weapon was
seized. W hen Valgara was interviewed, he admitted to possessing the weapon but
told officers he took it from a man w ho had used it to threaten his friend during
an argument. Valgara further stated he w as apprehended only a short time later,
as he walked from the friends apartment to his vehicle.
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A federal grand jury indicted Valgara for possession of a firearm by a felon


in violation of 18 U.S.C. 922(g)(1) and 924(a)(2). Valgara entered into a
written plea agreement wherein he agreed to plead guilty to the charge and the
Government agreed to recommend a three-level reduction in his offense level for
acceptance of responsibility if his offense level exceeded sixteen. Valgara and
the Government also acknowledged that Valgaras prior Colorado conviction for
third-degree assault would likely be treated as a crime of violence for purpose of
the calculation of his base offense level, resulting in a base offense level of
tw enty. See USSG 2K2.1(a)(4); United States v. Paxton, 422 F.3d 1203, 1207
(10th Cir. 2005). The G overnment and V algara agreed that applying a base
offense level of twenty results in a sentence greater than necessary to satisfy the
goals set forth in 18 U.S.C. 3553(a). Accordingly, the Government further
agreed to recommend that the district court impose a sentence calculated by
applying a total offense level of twelve.
A PSR was prepared and it calculated Valgaras criminal history at
Category VI based on seventeen criminal history points. The PSR calculated
Valgaras base offense level at twenty, with a three-level reduction for acceptance
of responsibility, resulting in a total offense level of seventeen. Neither V algara
nor the Government filed an objection to the PSR. Valgara, however, filed a
response to the PSR, moving for a downward departure and requesting a sentence
below the advisory guidelines range. In support of his request for a downward
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departure, Valgara argued (1) Criminal History Category VI overrepresented his


criminal history and (2) his family ties and responsibilities were present to an
exceptional degree. In support of his request for a variance based on the
application of 18 U.S.C. 3553(a), Valgara asked the district court to consider
the nature of the offense and his history and characteristics. See 18 U.S.C.
3553(a)(1). Specifically, Valgara referenced the unusual circumstances
surrounding the crime of conviction, his exemplary behavior while on pretrial
release, his excellent employment history, and his success in overcoming a
drinking problem. He also argued the imposition of a six-level increase in his
base offense level resulted in an unfair sentencing disparity between him and
other defendants sentenced for similar conduct because his Colorado third-degree
assault conviction was not as serious as many other crimes of violence which
trigger the six-level increase. 1 Valgara expressly asked the district court to
sentence him as if the six-level enhancement did not apply.
After considering Valgaras response, the probation officer who authored
the PSR filed a Sentencing Recommendation adopting the position that Criminal
History Category V better represented Valgaras criminal history. The
1

Although Valgara characterizes his offense level as including a six-level


increase or enhancement because of his prior assault conviction, his
characterization is incorrect. Pursuant to USSG 2K2.1(a)(6), a prohibited
person w ithout a prior crime-of-violence conviction is assigned a base offense
level of fourteen. A prohibited person with a prior crime-of-violence conviction,
like Valgara, is assigned a base offense level of twenty pursuant to USSG
2K2.1(a)(4)(A).
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Sentencing Recommendation further recommended the imposition of a forty-sixmonth sentence, reasoning that Valgaras prior sentences of probation and
incarceration had not deterred him from continued criminal behavior. At the
sentencing hearing, the district court adjusted Valgaras criminal history from
Category VI to Category V, concluding Valgaras criminal history was
overrepresented. The court, however, determined Valgaras family ties and
responsibilities were not extraordinary and, accordingly, the court refused to
depart downward based on those grounds. See United States v. M cClatchey, 316
F.3d 1122, 1131 (10th Cir. 2003) (The fact that a defendant cares for a family
member with a mental or physical disability is not by itself sufficient to make the
circumstances exceptional.). The district court also refused to impose a
sentence below the low end of the advisory guidelines range, stating, The Court
believes that the guideline sentence adequately reflects the balancing of all the
factors specified in Title 18 United States Code Section 3553(a). The court
sentenced Valgara to forty-six months imprisonment, the low end of the advisory
guidelines range based on Criminal History Category V and an offense level of
seventeen. Valgara then brought this appeal, challenging the sentence imposed by
the district court.
III.

Discussion
This court reviews Valgaras sentence for reasonableness. United States v.

Booker, 543 U.S. 220, 260-61 (2005). Because [r]easonableness has both
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procedural and substantive components, our review encompasses both the


reasonableness of the length of the sentence, as well as the method by which the
sentence was calculated. United States v. Cage, 451 F.3d 585, 591 (10th Cir.
2006); United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). Valgara
argues his sentence is both procedurally and substantively unreasonable.
A.

Procedural Reasonableness
Valgara bases his first challenge to the procedural reasonableness of his

sentence on his assertion the district court misapprehended the nature of its
sentencing discretion. After Booker, a sentencing court must consider both the
properly calculated guidelines range and the sentencing factors articulated in 18
U.S.C. 3553(a). See United States v. Lynch, 397 F.3d 1270, 1272 (10th Cir.
2005). At sentencing, Valgara did not challenge the calculation of his base
offense level pursuant to USSG 2K2.1(a)(4)(A). See Paxton, 422 F.3d at 1207
(holding Colorados third degree assault statute is a crime of violence under
USSG 4B1.2(a)(2)); USSG 2K2.1 cmt. n.1 (stating the term crime of
violence for purposes of the base offense level of twenty set out in 2K1.2(a)(4)
has the meaning given that term in 4B1.2(a) and Application Note 1 of the
Commentary to 4B1.2). Valgara, however, argued he should be sentenced
below the advisory guidelines range based on a consideration of the 3553(a)
factors.

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Section 3553(a)(6) requires district courts to consider the need to avoid


unwarranted sentencing disparities among defendants with similar records who
have been found guilty of similar conduct. 18 U.S.C. 3553(a)(6). Valgara
argued his prior conviction for third-degree assault was a relatively minor offense
and contrasted sharply with the more serious nature of other crimes triggering the
application of the base offense level of twenty under U SSG 2K2.1(4)(A). See
United States v. Trujillo-Terrazas, 405 F.3d 814, 819-20 (10th Cir. 2005)
(concluding that an analysis of the factors set out in 3553(a) properly includes
consideration of the factual nature of prior convictions). V algara asserted his
situation is more analogous to that of a prohibited person 2 without a prior crimeof-violence conviction subsequently convicted of violating 18 U.S.C. 922(g)(1).
Accordingly, he urged the district court to sentence him as though a base offense
level of fourteen applied, arguing such a sentence would achieve the objective of
imposing uniform sentences on defendants convicted of similar conduct. See
USSG 2K2.1(a)(6) (assigning a base offense level of fourteen to prohibited
persons convicted of unlawful possession of a firearm).
The district court denied Valgaras request, stating:
The Base Offense Level is 20. There is simply no way to avoid that.
To do as the parties are suggesting here would be just a flagrant
misapplication of the guidelines. The Tenth Circuit is very clear,
this is a crime of violence, and we might as well toss the guidelines
2

For purposes of 2K2.1(a)(4) and (a)(6), a prohibited person is any


person described in 18 U.S.C. 922(g) or 922(n). USSG 2K2.1, cmt. n.3.
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out the w indow if w e dont apply them in an intellectually honest


manner. A nd I just dont think thats intellectually honest.
Valgara argues the district courts statement evidences a complete
misapprehension of the discretion that Booker explicitly restored to sentencing
judges. W e disagree. A review of the complete transcript of the sentencing
hearing demonstrates the district court was fully aware of its sentencing
discretion and its obligation to consider the factors set forth in 18 U.S.C.
3553(a). Valgara, quite simply, was asking the district court to use that
discretion as an end-run around the application of USSG 2K2.1(a)(4)(A) by
applying a guidelines range identical to one calculated without regard to his prior
third-degree assault conviction. The courts comment at sentencing reflects the
courts view that such an approach would be tantamount to wholly ignoring the
effect of Valgaras prior conviction on the calculation of his base offense level
and, hence, his advisory guidelines range. The district court was unwilling to
take this approach, concluding it would be a flagrant misapplication of the
guidelines and a disregard of circuit precedent. The courts refusal to exercise
its discretion in the manner sought by Valgara was not procedurally unreasonable.
Valgara also argues the district court failed to adequately explain its
reasoning for denying him a variance from the advisory guidelines range. After
entertaining all Valgaras arguments, the court stated,
The defendant has moved for an imposition below the guideline
range recommended by the Sentencing Commission on the grounds
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that the statutory factors do not justify following the guidelines here.
The Court disagrees with the exception of the guideline departure for
overrepresentation of his criminal history. The Court believes that
the guideline sentence adequately reflects the balancing of all the
factors specified in Title 18 United States Code Section 3553(a).
Because Valgara did not raise this procedural challenge during the sentencing
hearing, the issue is reviewed for plain error. See United States v. Ruiz-Terrazas,
477 F.3d 1196, 1199 (10th Cir. 2007). Thus, Valgara must demonstrate (i) error,
(ii) that is plain, which (iii) affects [his] substantial rights, and which (iv)
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. It is unnecessary for this court to analyze all four plain error
factors because it is clear the district court did not commit error when it sentenced
Valgara.
W e have recently held that a specific discussion of Section 3553(a) factors
is not required for sentences falling within the ranges suggested by the
Guidelines. Id. at 1202. Because Valgara does not dispute his sentence falls
within a properly calculated guideline range, the district court was not required to
specifically explain why it rejected each argument he made in support of his
request for a below-guidelines sentence. See United States v. Jarrillo-Luna, 478
F.3d 1226, 1230 (10th Cir. 2007) ([A] district courts duty to explain why it
chose the given sentence does not also require it to explain w hy it decided against
a different sentence.). It is clear from the record, including the district courts
statement, that the court considered Valgaras arguments, the Guidelines, and the
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factors set forth in 18 U.S.C. 3553(a). Thus, the court satisfied its procedural
obligation to indicate it did not rest on the guidelines alone, but considered
whether the guideline sentence actually conforms, in the circumstances to the
statutory factors. Id. (quotation omitted). Accordingly, Valgara has not show n
the sentence imposed by the district court was procedurally unreasonable.
B.

Substantive Reasonableness
Valgara concedes his sentence falls within a properly calculated guidelines

range but nevertheless argues it is substantively unreasonable. W hen a district


court correctly applies the Guidelines and imposes a sentence within the
applicable Guidelines range, that sentence is entitled to a rebuttable presumption
of reasonableness. United States v. Townley, 472 F.3d 1267, 1276 (10th Cir.
2007) (quotation omitted). Consistent with Booker, our [r]easonableness review
is guided by the factors set forth in 18 U.S.C. 3553(a). Kristl, 437 F.3d at
1053. Those factors include the nature of the offense and characteristics of the
defendant, as well as the need for the sentence to reflect the seriousness of the
crime, to provide adequate deterrence, to protect the public, and to provide the
defendant with needed training or treatment. Id. Valgara presents several
arguments that his sentence is unreasonable in light of the 3553(a) factors,
including (1) his criminal history overstates the seriousness of his criminal past
and is not predictive of future recidivism, (2) his Social Security records indicate
he has an excellent employment history, (3) he is the sole source of support for
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his wife and four children, (4) the crime of conviction was atypical because the
gun was not loaded and it was not used in the commission of another offense, and
(5) his criminal activity ceased three years ago when he addressed his alcohol
abuse problem. H aving review ed and considered Valgaras arguments, we
conclude they are insufficient, both individually and in the aggregate, to rebut the
presumption of reasonableness regarding his sentence. 3
IV.

Conclusion
The sentence imposed by the district court is both procedurally and

substantively reasonable. A ccordingly, the judgment of the district court is


affirmed.
ENTERED FOR THE COURT

M ichael R. M urphy
Circuit Judge

Even in the absence of the Kristl presumption, we would conclude


Valgaras sentence is substantively reasonable.
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